Returning to work post-injury doesn't invalidate disability claim

This article was initially published in the Chicago Daily Law Bulletin on May 29, 2019.

By Mark D. DeBofsky

Mark D. DeBofsky is a name partner of DeBofsky Sherman Casciari Reynolds P.C. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage, and Social Security law. He can be reached at [email protected].

Does working after suffering an injury invalidate a subsequent disability insurance claim? According to a recent U.S. District Court ruling from Florida, the answer is no.

In Kaviani v. Reliance Standard Life Insurance Co., 2019 WL 1759245 (M.D. Fla., March 27, 2019), Kia Kaviani, a dentist, sustained neck injuries in a car accident in 2012. He returned to full-time work but submitted a disability claim three years later when he alleged that pain from his injuries rendered him unable to continue to practice dentistry.

Although Kavianai’s claim was supported by his treating doctor, Reliance Standard rejected the claim after an examination by a physician selected by Reliance returned findings that deemed him capable of working.

Challenging that determination, Kaviani submitted an appeal that included a report from a functional capacity evaluation that included validity findings and which found that while the plaintiff’s overall work ability was in the sedentary range, he had significant limitations using his right (dominant) upper extremity, that "reaching and handling" were "below functional" ability and "endurance to repetitive use" of the shoulder made it unsafe for him to work as a dentist.

A second test corroborated the functional capacity evaluation findings, as did an assessment from an independent physician whom Kaviani hired to review his medical records and reports.

Finally, Kaviani submitted declarations from two dental assistants who had worked with him and related their observations of his difficulties at work, which included dropping instruments and having to stop in the middle of procedures he was performing due to pain.

A file review obtained by Reliance following Kaviani’s appeal simply rejected the plaintiff’s evidence and refused to credit his reports. Litigation ensued.

Although the court applied a deferential standard of review, the plaintiff nonetheless prevailed on summary judgment. Despite Reliance Standard’s assertion that Kaviani’s claim was invalid, the court found he "provided a myriad of objective evidence that he was, in fact, experiencing debilitating pain."

Although there was a three-year gap between the car crash and the disability claim and there was no triggering intervening event, the court determined "it is not difficult to understand how plaintiff’s pain gradually worsened and eventually became unbearable as opposed to the pain being triggered by a single, discrete event."

The court cited a variety of rulings on point, which have all recognized:

  • "‘[D]isability is not disproved by the mere fact that the claimant found a way to continue working.’" Nieves v. Prudential Insurance Company of America, 233 F.Supp.3d 755, 761 (D. Ariz. 2017) (collecting cases). "‘A desperate person might force himself to work despite an illness that everyone agreed was totally disabling. Yet even a desperate person might not be able to maintain the necessary level of effort indefinitely.’" Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003) (internal citations omitted).
  • "As explained at length below, there is objective medical evidence that plaintiff was experiencing debilitating pain. Plaintiff ‘should not be punished for heroic efforts to work by being held to have forfeited his entitlement to disability benefits’ once he stopped working. Id.; see also Marecek v. BellSouth Telecommunications Inc., 49 F.3d 702, 706–07 (11th Cir. 1995) (indicating that the 11th Circuit does not view attempting to work as a per se waiver of disability benefits)."

The court also dismissed Reliance Standard’s objection that the court should not consider medical findings subsequent to the claim denial:

  • "Defendant’s argument ignores reality. First, defendant considered this evidence on appeal. Second, the evidence corroborates evidence from the relevant time frame that defendant had deemed too subjective. Plaintiff was not suddenly complaining of a completely new ailment on appeal."
  • "When plaintiff initially submitted his claim, he included evidence that he was suffering from the exact pain that was later substantiated by Dr. Ross and the FCE [functional capacity evaluation]. It is unreasonable to conclude that this later evidence is somehow irrelevant to the question of whether plaintiff was, in fact, experiencing such pain."

Finally, the court rejected the defendant’s claim that pain symptoms cannot suffice as the basis of disability. The evidence showed that working exacerbated the plaintiff’s pain and the evidence established that "pain, numbness and tingling were not only uncomfortable but also caused plaintiff to drop instruments and made him unable to perform some tasks effectively, including having to abruptly stop during procedures." The court thus concluded:

  • "Instead of reviewing all of the evidence from a neutral standpoint, Defendant cherry-picked portions of the record to rely on while ignoring other portions. And, often, the portions relied upon by defendant were the unsupported opinions of Dr. Butler, who also simply disregarded much of the objective evidence."
  • "Defendant’s behavior suggests that its goal was to find a way to deny plaintiff’s claim. And such behavior indicates that the conflict of interest created by defendant’s financial incentive to deny the claim clouded defendant’s judgment."

The court was obviously troubled by Reliance Standard’s approach to this case. Simply ignoring evidence or rejecting reliable evidence without explanation is hardly consistent with the fiduciary obligations that the Employee Retirement Income Security Act imposes on insurers that administer employee benefit claims.

"The poverty of that tactic was made even more evident by the records and reports Kaviani submitted following the claim denial, which objectively corroborated his allegations. The FCE and witness statements were also deemed critical evidence in addition to the treating doctor’s findings."

The court could have gone a bit further in rejecting the insurer’s absurd argument that test results obtained following the claim denial were irrelevant. A similar argument was rejected in Fontana v. Guardian Life Insurance, 2009 U.S.Dist.LEXIS 3303, 2009 WL 73743 (N.D. Calif., Jan. 12, 2009), which cataloged cases holding an insurer may not disregard evidence generated subsequent to the relevant disability date. Also see, Barbu v. Life Insurance Company of North America, 35 F.Supp.3d 274 (E.D. N.Y. 2014) (rejecting insurer’s insistence on "time-concurrent" evidence); Holmstrom v. Metropolitan Life Insurance Co., 615 F.3d 758 (7th Cir. 2010); and Clark v. Cuna Mutual Long Term Disability Plan, 2016 WL 1060344 (W.D. Wis., March 15, 2016).

I represented the plaintiff in the Holmstrom case mentioned above.

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